Rights, Legitimate Expectations, Needs
and Responsibilities:
UNHCR and the New World Order
GEOFF GILBERT*
'Other maps are such shapes, with their islands and capes! But we've got our brave Captain to thank'
(So the crew would protest) 'that he's bought us the best — A perfect and absolute blank.'
Lewis Carroll, The Hunting of the Snark, Fit the Second, fourth stanza, at p. 56 in The
Annotated Snark (ed. Martin Gardner, 1962).
Abstract
This paper starts from the premise that despite the enlarged role that UNHCR has taken on, particularly since 1989, it is still governed by its original 1950 mandate to provide international protection to refugees, as defined. This extended work has led it to deal with non-refugees, even those who are not even internally displaced, and to carrying out tasks beyond those originally envisaged. Furthermore, its legal personality in international law has increased with its functions, and it is pointless to suggest that UNHCR should return to its original role. Thus, the aim of the paper is to examine what rights UNHCR already possesses which are pertinent to its new-found tasks and what rights it needs
vis-d-vis various actors. In some cases, it is difficult to conceive of the need in terms of a
right, and in those cases the object was to highlight a legitimate expectation. If UNHCR has this expanded role, however, the question arises as to its responsibilities in international law. Responsibility has two facets: responsibility for what and to whom. Both aspects are examined, acknowledging that as things stand UNHCR is not sufficiendy accountable. The additional difficulty, though, is that in many situations there is multi-agency activity, making it hard to attribute responsibility to any one actor. The conclusion is diat these rights and responsibilities need to be codified in some international convention which it * Professor of Law, Human Rights Centre, University of Essex. The author is grateful for the assistance of Francoisc Hampson and Nigel Rodley, colleagues at Essex, of Vera GowUand-Debbas (HEI, Geneva) and of Jean-Francois Durieux, Jeff Crisp, Eric E. Morris, Nicholas Morris, Volker Turk, Ann Encontre, Karin Landgrcn and Rick Towle (UNHCR, Geneva). This paper also benefited from lectures at the Human Rights Centre, University of Essex, by Alex Neve on the Great Lakes Crisis, and by Marie-Claude Roberge (ICRC) on international criminal tribunals. Finally, thanks are also due to all the IX.M. in Internationa] Human Rights Law students who have listened to me working out these ideas and challenged me about them, particularly the class of 1996-97..As always, the views expressed and any errors are mine alone.
350 Geoff Gilbert
is open to UNHCR, and other IGOs possibly, to join. While mere paper rights are of no direct, practical consequence, the fact that UNHCR workers can at least assert them in their dealings with State officials when they are being denied and that a modern clarification of die mandate will be established, has to be of benefit.
1. Introduction
To paraphrase Mark Twain, news of the demise of the Westphalian State, and its concomitant sovereign status, has been much exaggerated. While the certainties of the bipolar world of East-West confrontation have passed, there has been little evidence of States renouncing their sovereignty. Rather, alongside an increased number of States, one now has to cope with interdependent associations of States and simultaneous demands for autonomy by ethnic groups1 within States.2 Furthermore, armed conflicts are rarely inter-State any more, but are internal, often with more than two parties thereto and with a loose chain of command between what passes for the army's headquarters and those fighting on the ground. Conflicts are fragmented.3 And into all this uncertainty, the United Nations and its agencies have, in part, been thrust and have, in part, strode out The reduction in superpower confrontation within the Security Council has meant that the United Nations has deployed or has authorized the deployment of forces to 'solve' humanitarian crises.4 Along with the military forces, the humanitarian agencies have had to cope with a 'new world disorder', where they face demands by those they have been sent to assist and by the international community to solve the insoluble as if it were some mathematical puzzle.
Given the increased role in crises of humanitarian agencies, in particular UNHCR, do they need additional rights and powers to fulfil the expectations placed upon them?5 Further, if they have these greater rights and this increased role, should they assume a greater degree of responsibility in international law, or should responsibility remain with
1 A.D. Smith, The Ethnic Origin of Slates, (1986); sec generally, E. Gellner, Motions and Nationalism, (1983), esp. at 53ff. Also Smith, 'Nations and their Pasts'; Gellner, 'Do Nations have Navels?'; and Smith, "Memory and Modernity: Reflections on Ernest Gellner's Theory of Nationalism', 2 Nations
& Nationalism 358-88 (1996).
2 See T. Franck, 'Clan and Superdan: Loyalty, Identity and Community in Law and Practice', 90 AJIL 359, 360 (1996); N. MacCormick, 'Beyond the Sovereign State', 56 MLR 1 (1993).
See K. Landgren, 'Safety Zonea and International Protection: A Dark Grey Area', 7 1JRL 436, 437 (1995).
4 FJ. Hampson, 'States' Military Operations Authorized by the United Nations and International Humanitarian Law', in L. Condorelli (ed), The United Nations and Humanitarian Law, (1996), 371; H. McCoubrey a n d N . White, The BUu Helmets: Legal Regulation of United Nations Military Operations (1996).
The political quettion of whether UNHCR should be expanding its role is not addressed in this paper except in so far as its role calls into question its obligations under its Statute; see further below, note 28. In times of general financial constraint, however, it is sensible to focus on one's core obligation which, in the case of UNHCR, is protection. See also, W. Clarence, 'Field Strategy for the Protection of Human Rights', 9 IJRL 229 (1997).
States? This latter question is complicated, however, by the fact that States often seek to restrict their obligations to displaced persons and may be imposing extra burdens on UNHCR in order to avoid their own duties. Moreover, where a State mistreats refugees,6 UNHCR is criticized for not preventing it, rarner than the State being acknowledged as responsible under the 1951 Convention relating to the Status of Refugees.7 UNHCR can protest, usually privately, but its only other option would be to withdraw, leaving the refugees with no independent voice. At the same time, UNHCR has also adopted a more active and self-directed role as regards certain crises. In sum, the background picture is less than clearly defined.8
This article examines the rights, existing, required or desired, of UNHCR and the responsibilities it ought to assume in humanitarian crises:9 those responsibilities may be legal or they may merely reflect issues of good governance. The hope is to provide a framework for the better analysis of die international law relating to the work of agencies, particularly UNHCR, which protect displaced persons during humanitarian crises.
2. The End of Bipolarism
Although the strictly bipolar view of die world was already somewhat simplistic by the end of the 1980s, any analysis of present-day conflicts as aspects of a wider superpower confrontation would be unsubstantiated in fact.10 For refugees, die end of bipolarism has led to a decrease in their strategic and political value to States who had previously been eager to use their 'persecution' as justification for the confrontation." As a result of the end of bipolarism, die United Nations has had an increased role in humanitarian crises in terms of peacekeeping and peace-making, and
6 See Kenya's actions, reported in the Guardian, 31 Jul. 1997, 9. 7 189 IWTSbO. And see the 1967 Protocol, 606 6W77 267.
8 See N. Morris, 'Protection Dilemmas and UNHCR's Response: A Personal View from Within
UNHCR', 9 IJRL 492, 492, 496-7 (1997).
It may be possible to transfer the principles of this analysis to other IGOs and some NGOs; however, while they face similar problems to UNHCR, they present a very different framework of analysis. The other major actor in humanitarian crises, the Internationa] Committee of the Red Cross, may possess international legal personality through its activities, but is in fact a private Swiss non-governmental organization; see J-P. Lavoyer, 'Refugees and Internally Displaced Persons: International Humanitarian Law and the Role of the ICRC, 305 IRRC 162, 167 (1995).
For a view of the strategic nature of refugee movements, see G. Loescher, Refiiget MovarujUs and International Secmily, A d d p h i Paper No.268, 1992, 28ff; and A. Roberts, Humanitarian Action in War, Adelphi Paper No.305, 1996, 12-14.
" See UNHCR, WfHCR Straltg, Towards 2000 (1996), at para.18. See also, G.W. Hymans, 'Oudawing the Use of Refugees as Tools of Foreign Policy', 3 ILSAJ. Infl & Comp.L 149 (1996).
352 Geoff Gilbert
has had to take on more onerous responsibilities toward those caught up in the conflict.12
In the 1990s the Security Council has not merely found itself able to do things which it could not previously do. It has found itself expected to do somediing about conflicts of a type outside the United Nations' previous experience. While the United Nations cannot do everything, the United Nations is particularly well-placed to take action in the name of the international community. It is not inappropriate in principle for die United Nations to be involved in enforcement action and peace-enforcement operations.13
A clear example is the establishment of a safe haven in Northern Iraq for the Kurdish population in the aftermath of the Gulf War in 1991.14 At the time of their establishment, before Iraq's agreement to the presence of United Nations Guards,15 it is arguable that Northern Iraq was occupied territory, an occupation justified under, the UN Charter. Other inter-governmental organizations (IGOs) have equally adopted a more interventionist stance. While the Dayton Agreement affirms UNHCR's lead role in the humanitarian relief in Bosnia-Herzegovina, bom die Organization for Security and Co-operation in Europe and the European Union have administrative functions which incline towards them fulfilling tasks within Bosnian society normally associated with sovereign governments. The European Union, for example, which is not even explicitly stated to have international legal personality in the Treaty of Maastricht, is responsible for the City of Mostar in Bosnia-Herzegovina, evidencing through practice what is not express in the treaty.'6
If there is increased interventionism within States, how far are IGOs, and in particular the United Nations, responsible in international and domestic law for dieir actions and those of persons working for them?
" See Loescher, Refugee Movements, 52-3; Roberts, Humanitarian Action, 10-18. See also, A. Roberts, 'The Laws of War Problems of Implementation in Contemporary Conflicts', in European Commission, Law in Humanitarian Crises, vol. I, 13-82 (1995).
" Hampson, 'States' Military Operations', 425.
14 H. Cook, 77u Safe Haven m Northern Iraq, 1995.
15 Sec UNSC res. 688 (1991), 30 ILM 858 (1991), in which the Security Council '3. Insists that
Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operation . . . ' and '5. Requests further the Secretary-General to use all the resources at his disposal, including those of the relevant United Nations agencies, to address urgendy the critical needs of the refugees and displaced Iraqi population.' The United Nations Guard was agreed to by Iraq in a Memorandum of Understanding of May 25 1991: UN doc. S/22663, 30 ILM 860 (1991). See Cook, The Safe Haven
m Northern Iraq, 56ff. UNHCR's presence in Northern Iraq was covered by a Memorandum of
Understanding of 18 Apr. 1991 between Iraq and the Secretary-General's Executive Delegate and a request by Iraq on April 23 that the United Nations should take over the Centres being established by die Allies' Combined Task Force Provide Comfort (I am grateful to Nicholas Morris of UNHCR for this information).
16 Cf. Reparations Cast, below, note 17. D . McGoldrick, International Relations Law of the Eiavpean
Union, 1997. The Dublin proposals of 5 Dec 1996 recommend in Ch. 13 that the European Union
The United Nations is not a State, so the law pertaining to State responsibility is not immediately applicable. Nevertheless, the United Nations, at least, has international legal personality. In the Reparations
Case,11 the International Court of Justice (ICJ), acknowledging the role
the United Nations was intended to fulfil according to its founders, with its attendant duties and responsibilities, held that the attribution of international personality in large measure was indispensable. Whilst the United Nations was not a State, 'it is a subject of international law and capable of possessing international rights and duties . . . ' That it could be liable in domestic law was recognized by the 1946 Convention on the Privileges and Immunities of the United Nations.18 These privileges and immunities, though, can be waived.19 In addition, there is a question as to how far the United Nations, and other IGOs, can be responsible in international law. like States, responsibility should only be civil, not criminal.20 However, a contrast has to be drawn between the position of IGOs in humanitarian crises and any troops sent as peacekeepers or peacemakers. The latter remain national contingents, bound by the law of armed conflict in so far as it applies,21 with the sending State responsible for any violation.22 Workers for IGOs, on the other hand, do not incur the liability of their country of nationality for acts committed on behalf of die IGO. To that extent, there is greater need to look at the responsibility of IGOs.
1 Reparation for Injuries Suffered in the Senna of the Untied Nations Case, Advisory Opinion, [1949] ICJ Rep. 178-9.
UKTS 10(1950), Cmd 6753; see N.S. Rodley, 'Immunities of Officials Associated with Permanent
United Nations Establishments', 26 Tb. World Aff. 314 (1972).
19 Standard Chartered Bank v International Tm Counal [1986] 3 All E R 257.
20 See the International Law Commission's Draft Code on State Responsibility, art. 19 of which
describes some breaches of international law by States in terms of international crimes. Part I of the Draft Code can be found in [1980] Yb.ILC, vol II (Pt 2), 3CM-. For a critical view of the criminalization of State Responsibility see, L.C. Green, ' N e w Trends in International Criminal Law", 11 Israeli
Tb.HJl 9, 2 4 - 4 0 (1981); K. Marek, 'Criminalizing State Responsibility1, 14 R.BDJ. 460 (1978-79)
and G. Gilbert, ' T h e Criminal Responsibility of States', 39 ICLQJiAb (1990); R. Rosenstock, 'Current Developments: T h e Forty-Seventh Session of the International Law Commission', 90 AJIL 106 (1996), and V. Morris a n d M - C . Bourloyannis-Vrailas, 'Current Developments: T h e Work of the Sixth Committee at the Fiftieth Session of the U N General Assembly', 90 AJIL 491 (1996).
21 See Hampson, 'States' Military Operations', a n d McCoubrey a n d White, Blue Helmets. 22 S e e C a n a d a ' s e x p e r i e n c e o f violations c o m m i t t e d b y its troops in S o m a l i a {Guardian, 5 A p r .
1993, 8; 17Jan. 1997, 15; 3Jul. 1997, 21) and in Bosnia-Herzegovina (Guardian, 18Jan. 1997, 12); also in the case of Somalia, with regard to Belgian forces (Guardian, 12 Apr. 1997, 21; 23Jun. 1997, 14; 1 Jul. 1997, 12) and Italian forces (Guardian, 7 Jun. 1997, 18; 25 June 1997, 15; 28 May 1998, 7: international edition). Somali faction leaders have claimed that they should receive damages from the UN for the behaviour of these troops: Guardian, 12Jul. 1997, 14; Alex de Waal, 'A Brutal Peace", Editorial, Guardian, 30 OcL 1997, 21.
354 Geoff Gilbert
3. The United Nations High Commissioner for
Refugees
23People working for UNHCR are, for the most part, accorded functional immunity. The Office of the High Commissioner is an integral part of the United Nations and thus within the 1946 Convention on Privileges and Immunities.24 In articles VII and following of the UNHCR's Model Co-operation Agreement with Governments (Model Agreement), UNHCR, its officials and experts on mission are to benefit from the relevant provisions of the 1946 Convention and 'such additional privileges and immunities as may be necessary for the effective exercise of the international protection and humanitarian assistance functions of UNHCR.'25
Thus, die starting point must be that ordinarily UNHCR and its staff will not be liable in domestic law for any wrongdoing associated with carrying out their jobs, although article XV allows the Secretary-General of die United Nations to waive mat immunity widi respect to personnel where it would odierwise 'impede die course of justice and it can be waived widiout prejudice to die interests of die United Nations and UNHCR.'26 The privileges and immunities of UNHCR itself cannot be waived under the Model Agreement,27 although article XVI deals with the settlement of disputes between UNHCR and the host government. That, however, summarizes the traditional, solely domestic position, whereas it is the contention of this paper that given the increased role for UNHCR during die 1990s, it is necessary to reconsider the rights required and the responsibilities to be assumed by UNHCR in a wider context.
U N H C R has been chosen because of (he leading role placed u p o n it by States a n d the United Nations in h u m a n i t a r i a n crises.
24 Above, note 18.
25 Additionally, Article X states that the UNHCR Representative and Deputy Representative
and other senior officials shall be treated in the same manner as diplomatic envoys and enjoy full diplomatic immunity; see 1961 Vienna Convention on Diplomatic Relations 1961: 500 UNTS95.
26 The fact that immunity stems from the 1946 Convention on the Privileges and Immunities of
the United Nations and waiver ihould not prejudice the interests of the United Nations as well as UNHCR that leads to this function being given to the Secretary-General rather than the High Commissioner. This does not mean that UNHCR has no separate personality from that of the Secretariat of the United Nations; see Article XVI — where UNHCR and the host government have a dispute and cannot agree on an arbitrator, they seek the services of the President of the ICJ to resolve the problem, not the Secretary-General.
27 A l t h o u g h U N H C R c o u l d waive it in practice; see Standard Chartered Bank u ITC, a b o v e , n o t e 19,
3.1 TheRoleofUNHCR
The role of UNHCR is laid down in its Statute, 'providing international protection to refugees',28 and in the Convention and Protocol relating to the Status of Refugees.29 Nevertheless, the role has developed to fit the times and has been added to by the General Assembly and the Economic and Social Council (ECOSOC). UNHCR is also advised by the Executive Committee of the UNHCR Programme.30
UNHCR's primary purpose is to protect the safety and welfare of people who have been uprooted or threatened by persecution, armed conflict and human rights violations. In its efforts to fulfil that objective, the organization seeks lasting solutions to the plight of refugees and other displaced people, primarily by means of voluntary repatriation and reintegration, and strives to mitigate the problems confronting those countries and communities affected by forced population displacements. By supporting national and international initiatives to ameliorate conditions in countries of origin, thereby enhancing the security of people who might feel compelled to seek safety elsewhere, UNHCR is increasingly engaged in the effort to avert refugee movements and other forced displacements . . . Since the late 1980s . . . a growing proportion of UNHCR's activities has taken place within countries of origin, both in zones of active conflict, and in the context of multidimensional peacekeeping, peacebuilding and conflict resolution operations.31
From being responsible only for protection under the Statute and for ensuring that member States honour dieir obligation under article 33 not to refoule persons falling within the strict definition found in article 1 of die 1951 Convention, UNHCR's role has expanded incrementally and exponentially to cover victims of war and human rights violations, as well as persons who have not managed to cross an international frontier and even to assisting in stabilization in potential source States.32 The High Commissioner herself has recognized tiiis33 and has noted the problems to which it gives rise.
28 U N G A ra.428(V) Annex, U N G A O R Supp. (No.20) 46, U N d o c A / 1 7 7 5 , 14 D e c . 1950,
Statute of the Office of the United Nations High Commissioner for Refugees; see in particular paras. 1—3, 9 a n d 11. T h e General Assembly has since adopted further resolutions defining the High Commissioner's role; see H C R / I N F / 4 8 / R c v . 2 .
29 Above, note 7. T h e U N H C R has the duty of'supervising the application of the provisions' b y
States of the Convention a n d Protocol: art. 35 C S R 5 1 , art. II (1) C S R P 6 7 .
30 Currently there a r e fifty-three States o n the U N H C R Executive C o m m i t t e e ( E X C O M ) ,
including the five p e r m a n e n t members of the Security Council. E X C O M Conclusions might reflect customary international law, b u t on their own, like General Assembly resolutions, they have n o binding force in international law a n d a r e solely r e c o m m e n d a t o r y . Moreover, whereas o n e can use General Assembly resolutions as evidence of custom, in p a r t because nearly all States arc m e m b e r s of the United Nations, almost three-quarters of U N M e m b e r States a r e not o n E X C O M ; E X C O M Conclusions a r e akin to General Assembly Resolutions, only weaker.
51 ' U N H C R 2000', above, note 11, a t paras. 1 a n d 5. 12 See also, ' U N H C R 2000', above, note 11, paras. 3 2 , 3 3 .
53 See the speech of Sadako O g a t a , 'World O r d e r , Internal Conflict a n d Refugees', J o h n F .
356 Geoff Gilbert
[In-State activities raise] ... difficult questions as [they touch] upon national sovereignty. Consent of the State concerned is an essential condition for UNHCR to exercise its protection function toward internally displaced persons. In many instances, however, there is no functioning government to grant consent as die country may de facto be governed by competing military and political factions.34
UNHCR is to be non-political and is to act in the humanitarian interest,35 yet this neutrality is challenged when the more interventionist stance of the United Nations leads to it being perceived as favouring one side or the other.36
3.1.1 The Scope of UMiCRi Mandate
UNHCR is a subsidiary organ established by the General Assembly under article 22 of the United Nations Charter.37 The scope of its mandate is to be found in its Statute.38 However, the Statute refers to the High Commissioner following policy directives from the General Assembly and ECOSOC and that the General Assembly may determine that the High Commissioner shall engage in additional activities, subject to resource limitations.39 UNHCR also considers the advice of the Executive Committee.40 There is, however, no reference to the role of the Security Council and the Statute only refers to the Secretary-General in Chapter III Organization and Finances, where paragraph 17 provides that 'The High Commissioner and the Secretary-General shall make appropriate arrangements for liaison and consultation on matters of mutual interest.' The constitutional position of UNHCR within the United Nations system reflects its role. Under paragraph 2 of its Statute, the High Commissioner's work is to be non-political, humanitarian and social. To avoid the politicization associated with the United Nations Secretariat,41 die High Commissioner is to be nominated by the Secretary-General, but is elected by the General Assembly.42 The High Commissioner should follow die policy directives of the General Assembly and ECOSOC and reports annually to the General Assembly.43 Thus, taking directions from the Secretary-General to the exclusion of the General Assembly might amount to a partial breach of mandate.44 Nevertheless, despite the attempt
54 Above, note 33, 2.
35 UNHCR Statute, above, note 28, para. 2.
16 See Landgren, 'Safety Zones', 457-8; and Roberts, 'Humanitarian Action', esp. 29—35, 51-6
and 82-4.
37 See UNGA res. 319 A (TV), 3 D e c 1949. 38 Above, note 28.
39 Statute, above, note 28, paras. 3, 9.
40 In 1996, the Executive Committee delegated some of its authority to a Standing Committee.
41 See G.S. Goodwin-Gill, The Refugee in Intanatwtud Law, 2nd ed. 1996, 214ff, esp. note 43. 45 Statute, above, note 28, para. 13.
45 Above, note 28, paras. 3 and 11, respectively.
44 The Secretary-General has been able to inmtt the High Commissioner to participate in United
Nations humanitarian efforts since 1972 (UNGA res. 2956 (XXVIi), para. 2, (12 Dec 1972). I am grateful to Jean-Nicolas Beuzc, LLM student 1996-97, for discussions on this point
to separate and distance the work of the High Commissioner from the political decisions of the Secretary-General, one recent event suggests that the Secretary-General does not always fully accord the High Commissioner her intended independent standing: Boutros Boutros-Ghali ordered UNHCR to resume humanitarian assistance in the former Yugoslavia after Sadako Ogata had withdrawn it in protest.45 This event suggests that the High Commissioner may not be solely answerable to the General Assembly, despite the Statute.46 As for the Security Council, it could give directions to a State which would also require the High Commissioner to act so as to assist in the maintenance or restoration of international peace and security.47 However, in that case, any violation of mandate in response to a Chapter VII resolution would presumably be unchallengeable following the ICJ's decision in the Lockerbie case.48
Whereas the Statute gives the General Assembly power to extend the range of the High Commissioner's activities, that power, since it is within the Statute, must be exercised so as not to violate the Statutory mandate. Of course, there is nothing to stop the General Assembly from drafting a new Statute, and the present confusion comes from incremental additions to UNHCR's role and the question whether they represent a new general mandate or whether they are ad hoc. Even more so than the General Assembly, the Secretary-General, to the extent that any instruction to the High Commissioner to act is constitutional, must also instruct in conformity with the Statute and accepted General Assembly extensions. The Security Council, on the other hand, could, in theory under a Chapter VII direction to members of the United Nations,49 indirectly
45 Guardian, 18 F e b . 1993, 8; 19 F e b . 1993, 10; 2 0 F e b . 1993, 1; 2 2 F e b . 1993, 8.
46 The proper response is evidenced by the practice of the present incumbent Kofi Annan, in
consultation with the High Commissioner, condemned the then rebel forces in the 1997 Zairean civil war for denying UNHCR and other relief organizations access to refugees from Rwanda who were meant to be considered for repatriation, achieving access for UNHCR once more: Guardian, 26 Apr. 1997, 14; 29 Apr. 1997, 8; 15 May 1997, 17.
47 UNHCR has been given functions by the Security Council in response to humanitarian crises
in many resolutions in recent years; see, for example, UNSC res.787 (1992), 16 Nov. 1992, in which para. 19 called on the Secretary-General and High Commissioner to promote 'safe areas for humanitarian purposes'; to mat extent, it is recognized that displacement can be a threat to international peace and security. So far, every extension of UNHCR's role by the Security Council, and for that matter the Secretary-General, has been with prior consent of the High Commissioner (again, I am indebted to Nicholas Morris for his comments on an earlier draft). That still leaves open whether a Chapter VII Resolution is binding on non-State actors under arts. 41 and 42 of die Charter, but the ICJ's decision in the Lockerbie case, (below, note 48), indicates the subservience to the Security Counci] of United Nations institutions, at least.
48 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahmjpa v United Kingdom and the USA, [1992] I C J R e p . , 3 ,
paras. 39ff: 31 ILM 662 (1992); F. Beveridge, T h e Lockerbie Affair', 41 /CLQ.907, 916-19 (1992). Cf. J-E. Alvarez, 'Judging the Security Council', 90 AJLL 1 (1996). A resolution under Chapter VI would not necessarily be unchallengeable.
49 UNSC res.941 (1994), 23 Sept 1994, para. 5, called on the Bosnian Serbs, who are not a
member State of the United Nations, to give unimpeded access to UNHCR to Banja Luka, Bijeljina and odier areas of concern.
358 Geoff Gilbert
require UNHCR not only to act beyond its mandate, but contrary to it if that was necessary to restore international peace and security.50
Parallel to its mandate, one must also have regard to UNHCR's legal personality in international law, its functional capacity.51 Given that UNHCR is a subsidiary organ of the General Assembly, it has only that degree of personality conferred by the latter organ of the United Nations. Under paragraph 8 of the Statute,52 it is assumed that UNHCR will have independent legal personality on the international plane, for,
[the] High Commissioner shall provide for the protection of refugees falling under the competence of his Office by:
(a) Promoting the conclusion and ratification of international conventions for
the protection of refugees, supervising their application and proposing amendments thereto, (emphasis added)
hi article 35 of the 1951 Convention,53 States have agreed that diey will facilitate UNHCR's supervision of the application of the Convention's provisions. In bodi instances, UNHCR is treated as being able to function
vis-a-vis States in a general supervisory capacity widi regard to refugees.
Following the Reparations Case,*4 die particular international rights and
duties of UNHCR, 'depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.'
In dieory, UNHCR cannot act beyond its statutory remit, aldiough diat provides for the General Assembly determining additional activities 'widiin the limits of the resources placed at [the High Commissioner's] disposal'. However, Shearer has noted that the ICJ went on to establish a doctrine of inherent powers,55 diose functions 'conferred upon [die international institution] by necessary implication as being essential to die performance of its duties'.56 One example is UNHCR's management of camps, not referred to in the Statute, but essential to its work of providing protection to groups of refugees.57
To whom dien, does the mandate extend?58 The Statute refers solely to refugees. They are defined in paragraphs 6 and 7. While paragraph
50 W h a t if the Security Council decided that refugee c a m p s in State A were a threat to international
peace a n d security because of their destabilizing influence a n d ordered State B , the source State, to r e a d m i t its population forthwith, requiring U N H C R to assist in the transfer, even though n o status determination h a d taken place of persons in die c a m p a n d there w a s n o guarantee that a n y repatriation would b e voluntary?
51 Personality, here, is confined to issues of functionality a n d n o attempt is m a d e to examine the
issue in the abstract in international law.
52 Above, note 28.
53 Above, note 7. M Above, note 17, at 180.
55 I A Shearer, Stariei Intematiaial Law, 1 lth ed, 1994, 548. 56 Reparations Cast, a b o v e , n o t e 17, a t 182.
57 The Statute, above, note 28, paras. 1 and 2.
M See also G.S. Goodwin-Gill, "Who to Protect, How, . . . and die Future', Editorial, 9 IJRL 1
6.A mirrors the original, restrictive definition of the 1951 Convention before it was expanded by the 1967 Protocol,59 especially with respect to the temporal limitation, paragraph 6.B is not restricted, either temporally or geographically. Thus, even if in ratifying the 1951 Convention the State limited the refugees whom it would not refoule to those whose well-founded fear was as a result of'events occurring in Europe before 1 January
1951*,60 such a State could not deny that UNHCR has responsibility under its Statute to provide international protection to refugees resulting from events outside those parameters.6 The protection may be illusory, however, for the State can refuse these refugees entry62 or deport them, subject only to custom63 and any alternative human rights obligations that might be pertinent,64 for its reservation means it does not recognize their status. Furthermore, the resolutions of the General Assembly are not legally binding unless they encapsulate customary international law, to the development of which they can also contribute. It is possible to imagine that a State could consistently object to paragraph 6.B during the debates on the High Commissioner's mandate so as to evidence its non-acceptance of this wider customary definition of a refugee to whom UNHCR owes international protection.
Finally, whereas the 1951 definition, found also in paragraph 6 of the Statute, has been interpreted highly individualistically, the Statute provides in paragraph 2 that the work of UNHCR 'shall relate, as a rule, to groups and categories of refugees'. When deciding on non-refoulement, it is natural that individual decisions are necessary, but during a humanitarian crisis international protection will be offered to the group.
This leads to another part of UNHCR's work, namely, in refugee camps. As part of receiving influxes of persons fleeing from persecution across an international border, UNHCR has, almost since its inception, provided protection in refugee camps in receiving States. The increase in numbers in those camps, however, has left UNHCR, not necessarily
M Above, note 7. The Statute does not include 'membership of a particular social group' among
the grounds for persecution, that head having been added to the 1951 Convention only at the final stages of the drafting process. Nevertheless, para.2 of the Statute does state that the work of the High Commissioner 'shall relate, as a rule, to groups and categories of refugees'.
At 30June 1998, only Congo, Madagascar, Monaco, Hungary, Malta and Turkey limit refugees to those arising as a result of events in Europe. Madagascar and Monaco have not yet adhered to die 1967 Protocol, so the temporal limitation is also extant in dieir case.
' The Statute is renewed for five year periods. Thus, the General Assembly reaffirm their commitments in paragraph 6.B. The mandate of the Office of the High Commissioner was renewed for a further five years from 1 Jan. 1994: UNGA res.47/104, 16 Dec. 1992. The Third Committee adopted by acclamation in Nov. 1997 a resolution sponsored by 132 delegations to extend UNHCR to 2003; it was adopted by the General Assembly in Dec 1997.
a See the actions of Turkey following the Gulf War of 1991 ns-a-vis Iraqi Kurds; Cook, The Safe
Haan in Northern Iraq, 36.
6 3 See Goodwin-Gill, The Refugee in International Law, 167-71.
360 Gooff Gilbert
willingly or happily, with responsibility to co-ordinate a worldwide mini-empire with a population numbered in the millions.65 The Model Agreement talks of UNHCR consulting and co-operating with the host State, indicating that UNHCR is providing protection while the State remains responsible, de jure, for the people in those camps; in practice, UNHCR might co-ordinate assistance, but the day-to-day running of the camp will be in the hands of local authorities and/or NGOs distributing the relief. On the other hand, in effect, the land on which the camps lie has almost been 'leased' from the State which is no longer in de facto control of that area; international law, which maintains that the State is responsible for what happens on its territory, ignores the effective power of IGOs, which are die only bodies capable of providing for the large scale influxes of displaced persons during some humanitarian crises.
This leaves some questions unresolved. Unless die Security Council has ordained the existence of die camps under Chapter VII, then die differing obligations of die State under die 1951 Convention and UNHCR under its Statute are once again apparent: the State is under no duty to allow die establishment of die camp, odier than diat it might be the sole means of housing persons who have crossed die border before dieir refugee status can be determined;66 UNHCR, on die odier hand, has die wider obligation of providing international protection and die camp may be die best means, temporarily, of achieving diat end. Nevertheless, UNHCR would need die consent of die host State, altiiough how voluntary diat consent might be is open to question; when one million Rwandans crossed into die former Zaire fleeing die RPF as it took power, Kinshasa could have lawfully refused to permit die establishment of die camps along its border, however politically and economically its choice was constrained. The intricate relationship of die host State and UNHCR as regards die establishment and running of camps is a matter requiring further review.
UNHCR may not have intended to expand in die direction of camps, but tiiese are now seen as critical to its protection mission.
Food, shelter, health care and other forms of assistance are essential to the survival and safety of displaced populations, and constitute a vital form of human rights protection in their own right, especially in situations where civilian populations are subject to deliberate deprivation — including starvation — by the parties to the conflict67
Protection, UNHCR's primary responsibility, has necessitated die simultaneous provision of assistance and relief. Moreover, UNHCR also recognizes diat this type of work attracts funding from donor governments,
65 See EXCOM Conclusion 22 (XXXII) 1981, §111. 66 See above note.
unlike, for instance, legal protection in Western Europe. T o that extent, the extension of the 'empire' is actively pursued.
It is now evident that the resources available to multilateral organizations will come under growing pressure in the immediate future. Donors also seem likely to channel their contributions selectively, favouring programmes and operations which diey consider to be of the greatest strategic importance. As recent experience has amply demonstrated, relatively large amounts of money may be available for activities which benefit war-affected populations, while refugee programmes of the more traditional type fail to attract sufficient resources.68
Another increasing aspect of UNHCR's work with refugees is repatriation. While voluntary repatriation is mentioned as one of its functions in the Statute,69 UNHCR has appeared to treat it as its primary response to
refugee influxes in recent years.70 It is laid down as a task of UNHCR in
article 1.5 of the Dayton Agreement and in the Quadripartite Agreement.71
Until a few years ago, it was assumed that repatriation could take place only after a significant change in the political order of the refugee creating country, or following a peace settlement Today, voluntary repatriation is considered the most desirable solution to humanitarian crises, and active steps are being taken to create favourable security, political, human rights and socio-economic conditions to enable refugees and displaced persons to return home. Voluntary repatriation is now taking place to relatively safe and secure areas in countries engulfed in internal conflict or in the absence of a peace agreement.72
Whether Rwanda was safe at the end of 1996 when there were mass returns from camps in Burundi, the former Zaire and Tanzania is open to question, and Amnesty International has accused UNHCR of ignoring the human rights situation in Rwanda at that time.73 It is, without doubt,
one of the main areas where the rights and responsibilities of UNHCR need reconsideration.
68 'UNHCR 2000', above, note 11, para. 68.
69 Above, note 28, paras. 1, 8(c) and 9. See also EXCOM Conclusions 18 (XXXI) 1980, 40
(XXXVI) 1985, and 74 (XLV) 1994; Note on International Protection (submitted by the High Commissioner), paras. 35-8, 9 Sept. 1991. M. Zicck, UNHCR and Vohmicaj Repatriation of Refugees: A Lend Analysis, 1997.
A slightly different outcome occurred in Eritrea where the government appeared not to want the refugees to return and expelled UNHCR workers for preparing an information pack on repatriation: GumHan, 7 May 1997, 11.
71 Below, note 97. See also, T. Bucheli, T h e Returnees to the Gali Area: A Discussion Paper', UNOMIG 1996, 13-14, 22, a n d j . Walter, 'Peacekeeping by the CIS and the United Nations in Abkhazia/Georgia and Tajikistan', [1996] Infl Ptaakeepmg 78.
72 Ogata, 'World OroVj', 2-3. UNHCR has assisted the voluntary repatriation of 900,000 Somalis
to relatively safe areas in Somalia which, it a recognized, is still unstable.
73 See Amnesty International, 'Rwanda. Human rights overlooked in mass repatriation', 17, AI Index AFR 47/02/97, 14Jan. 1997; 'Great Lakes Region. Still in need of Protection: Repatriation, Refoulemcnt and the Safety of Refugees and the Internally Displaced', 5, AI Index AFR 02/07/ 97, 24 Jan. 1997. Cf. Morris, "Protection Dilemmas', 494-5. Within UNHCR, die return from the former Zaire is now termed an evacuation.
362 Geoff Gilbert
One of the greatest challenges facing UNHCR at present, and one which is likely to grow in the years ahead, concerns the organization's involvement in situations where refugees are returning to their own country because of external pressures or an absence of realistic alternatives.74
UNHCR is left balancing the competing interests of the host State, the source State and the refugees.
Internally displaced persons are, by definition, not refugees because they have not crossed an international frontier. Thus, UNHCR has no express statutory mandate to be concerned with them. However, being within their own State, they are of concern to international law as part of human rights law and, given that displacement will often arise as a result of armed conflict, of die international law of armed conflict, which will view diem like any other group of civilians.75 To a limited extent, UNHCR's work widi internally displaced persons has been recognized by the General Assembly since 1972. The UNHCR Executive Committee has also sanctioned work widi internally displaced persons in certain circumstances.77 The High Commissioner became involved in Bosnia-Herzegovina in 1991 upon die request of die Secretary-General,78 dealing widi, at diat time, internally displaced persons outside die traditional mandate; tiiis extension at die direction of die Secretary-General was continued in die Dayton Agreement.79 Furthermore, work widi internally displaced persons could also be seen as a necessary part of die functions of UNHCR's mandate to work widi refugees.80 Thus, where UNHCR is assisting in die repatriation of refugees, a function under die Statute, it may well be diat as a matter of necessity it has similarly to provide assistance to internally displaced persons.81 In 1996, UNHCR produced its own reference manual for staff regarding international legal standards, based on die Deng report to die Commission
74 ' U N H C R 2 0 0 0 ' , a b o v e , note 1 1 , a t p a r a . 25. S e c also, V o l u m e 9:4 of the International Journal
ofRefitgit Law ( O c t o b e r 1997), which focuses o n the question of repatriation.
75 L.T. Lee, 'Protection of Internally Displaced Persons in Internal Conflicts', 3 ILSA J. Infl &
Comp.L 529 (1997).
74 UNGA res.2958 (XXVII), 1972.
77 E X C O M Conclusion 75 (XLV) 1994. See also, U N H C R , 'Protection aspects of U N H C R
activities on behalf of internally displaced persons': U N doc. E C / S C P / 8 7 , Aug. 9 4 . O n the effect in international law of E X C O M decisions, see above, note 30.
78 See E.D. Mooncy, 'Presence, ergo Protection? UNPROFOR, UNHCR and the ICRC in Croatia and Bosnia-Herzegovina', 7 IJRL 407, 419-20 (1995).
79 1—21 N o v . 1995, A n n e x 7 Article HJ. 1. See also the Quadripartite Agreement re Abkhazia,
below, note 97. Initially, the High Commissioner was to have h a d a similar role in relation to t h e G r e a t Lakes region; the Secretary-General eventually appointed a Special Envoy to work widi all affected governments a n d involved agencies, including U N H C R ; see U N S C res. 1078 (1996), paras. 10, 13. At o n e time, die special envoy was d i e Assistant H i g h Commissioner.
™ See t h e Reparations Cast, above, n o t e 17, a t 182.
81 See U N H C R , UNHCRi Operational Experience of Hitting with Intemalif Displaced Persons, 1994, 3—10, 37-55. On the compatibility of assisting internally displaced persons and fulfilling its mandate to refugees, see R. Cohen, 'Refugees and Human Rights', Refugee Policy Group, Feb. 1995, 13-14.
on Human Rights.82 Internal displacement often has the same causes as international refugee movements,83 and there is no doubt that persons forced to flee their home have need for humanitarian assistance. The International Committee of the Red Cross (ICRC), for instance, consistent with its mandate, focuses on the context in which the victims are suffering rather than distinguishing between them on die basis of die victim's reaction, to flee or stay. UNHCR, however, is not a general humanitarian organization, yet to view working with internally displaced persons as 'an exceptional occurrence' while refugees who cross an international border remain its central concern84 is to ignore reality, whether mis should be UNHCR's role is simply a redundant question. The question is how this role should be regularized. The Representative of the Secretary-General on Internally Displaced Persons presented a new set of Guiding Principles on Internal Displacement to die Commission on Human Rights in 1998, proposing a definition or description which requires only diat die internally displaced person or group of persons have been forced to flee, 'in particular as a result of or in order to avoid die effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters .. .l85 Whetiier diere will be a United Nations High Commissioner for Displaced Persons in die future, responsible for die protection of all diose displaced regardless of whedier diey have crossed an international border, remains to be seen.
Associated widi internally displaced persons, and in some ways similar to camps, UNHCR has had to deal widi 'safe areas'.86 UNHCR has welcomed die link between human rights violations, refugee flows and direats to international peace and security,87 which developed from UN Security Council resolution 688 (1991) on die Kurdish safe haven in Northern Iraq, but still has its concerns about die operation of safe
82 F. Deng, Representative of the Secretary-General on Internally Displaced Persons, 'Compilation
and Analysis of Legal Norms', UN doc. E/CN.4/1996/52/Add.2.
85 Sec G. Gilbert, 'Root Causes and International Law: Refiigee Flowi in the 1990s', 11 J^QJiR
413(1993).
84 'UNHCR 2000', above, note 11, para. 16. See also para. 40, recognizing that increasingly
internally displaced persons cannot readily be separated from refugees; cither rhey will be mixed up with returning populations or alleviating their plight might prevent a transborder influx into a neighbouring State. See also, High Commissioner's Memo No.33/93, 28 Apr. 1993, UNHCR's Role with Internally Displaced Persons, in"UMHCRi Operational Experience with Internally Displaced
Persons, above, note 8 1 , A n n e x I.
85 See 'Guiding Principles On Internal Displacement', reproduced with comment and introduction
by Simon Bagshaw and Walter Kalin, below at 547-72.
86 See Landgren, 'Safety Zones'; J-P. Lavoyer, 'International Humanitarian Law after Bosnia', 3
ILSA J. Inl'l & CompX 583 (1997), and Ogata, "World Order1, 2.
364 Geoff Gilbert
areas.88 Given that most conflicts today are non-international and fragmented, there is less respect for the laws of war, coupled with an inability readily to distinguish those fighting from civilians. As such, protection of all civilians within die safe area, the internally displaced and those ordinarily resident there, both groups outside UNHCR's normal mandate, is difficult to achieve;89 safe areas may even have the effect of placing those outside that area in even greater jeopardy.90
Related to internally displaced persons, but sufficiently distinct so as to raise new issues concerning die scope of its mandate, UNHCR has also sought to provide in-country protection. The question arises as to what extent internally displaced persons should have rights beyond diose of persons equally affected by an acute crisis, but who have not fled their homes.
The question then arises as to a possible development of the law. This is a delicate matter, for there are already many legal regulations, and, when new rules are created (e.g. a convention on displaced persons), care must be taken not to undermine the existing law. Another moot point is the advisability of creating rules aimed solely at protecting displaced persons, which could result in discrimination against other victims who also deserve to be protected.91
When operating in-country, UNHCR is working widi people who are not even internally displaced, almough internally displaced persons may be part of a mixed community. The logic behind this extension of its activities is that if UNHCR can 'ameliorate refugee-producing conditions', then it is protecting potential refugees.92 Additionally, where the Statute lays down that UNHCR will seek permanent solutions, including repatriation,93 diis is to be 'by assisting Governments'; since repatriation must be voluntary, the government to be assisted must be diat of the source State, again providing support for in-country activities. UNHCR can only be successful in ameliorating refugee-producing conditions and in securing conditions conducive to voluntary repatriation by improving circumstances for die entire population.
The importance of this issue, however, lies in how far UNHCR's
88 See TJNHCR 2000', above, note 11, para. 36, and Landgrcn, 'Safety Zones', 457-8. In practice
the safe area may well become a prison; the operation by the Turkish government to seal its eastern border in the build-up to the possible use of armed force against Iraq by the United States and the United Kingdom by sending troops into northern Iraq to create a buffer zone, was justified by Ankara as a humanitarian aid package for potential refugees: Gtumhan, 10 Feb. 1998, 11.
See Mooney, "Presence, ergo protection?', 415—16, concerning the six safe-havens in Bosnia-Herzegovina.
90 Lavoyer, 'Refugees and IDPs', 176.
91 The ICRC has always provided assistance to all those caught up in a conflict: Lavoyer,
'Refugees and IDPs', 174-5; quotation at 179.
91 'UNHCR 2000', above, note 11, para. 42. See the High Commissioner's speech to the UN
Third Committee, Nov. 1992: 4 1JRL 541 (1992); also, Goodwin-Gill, The Refugee in Inkmatiawl Law, 282ff.
extension of its in-country work should develop from providing simple humanitarian relief to more general in-State support, such as restoration of civil society.94 Examples of in-country work can be seen in UNHCR's role in Bosnia-Herzegovina,95 where it was reaffirmed as lead agency for humanitarian relief under the Dayton Agreement,96 in Abkhazia/Georgia under the Quadripartite Agreement of 1994,97 and in its leading role in co-ordinating regional strategies, such as that in the CIS.98 However, UNHCR is not a general humanitarian organization, and there are dangers in providing in-country protection.99 Thus, merely by increasing its in-State role delivering humanitarian relief, UNHCR's activities may result in people being unable to obtain refugee status in other countries and it may no longer be perceived as acting entirely non-politically.100 Furthermore, if UNHCR's personality in international law is to be established by its attendant duties and obligations,101 this extension of its duties and obligations must accord it greater rights and responsibilities, as well, at least on an ad hoc basis.
Finally, before looking at the rights and responsibilities of UNHCR, one needs to consider the consequences of changing the primary focus from the protection of refugees, to providing humanitarian relief to all displaced persons.102 It would, even in that case, be difficult to ignore protection, at least in so far as it accompanies the provision of humanitarian relief.103 The difference is that humanitarian relief can be provided anywhere, increasing the pressure to return refugees to their own country. Where war or human rights violations were still occurring in the source State, protection might still be provided in other parts of that State, even in 'safe areas'. Protection would become relative, to be balanced against the ability to supply adequate resources in-country. This is not to say,
94 'UNHCR's Role in National Legal and Judicial Capacity-Building*, UN doc EC/46/SC/ CRP.31 (1996). See also, UNHCR/CDR 'Reintegration in the Transition from War to Peace, Sept. 1997.
95 UNHCR was initially asked to act in the former Yugoslavia by a letter from the then United
Nations Secretary-General Javier Perez de Cuellar on 25 OcL 1991; lead agency status is referred to in a report of Secretary-General Boutros-Ghali (S/23900), 12 Dec. 1992, para. 16 (information from various sources). Sec generally, Mooney, 'Presence, ergo protection?'
96 Article HI, Annex 7, above, note 79.
97 Between UNHCR, Russia, Georgia and Abkhazia, 4 Apr. 1994.
98 UNHCR, 'Information Note on the CIS Conference Process': UN dooA/AC.96/855 (1995).
See A.C. Helton, 'Regional Conference on Migration in the Former Soviet Union: Crucial Opportunities for the International Community', 7 IJRL 501 (1995); T h e CIS Migration Conference', 8 IJRL 169 (1996). See also, 'UNHCR 2000', above, note 11, paras. 47, 48.
See also, Cohen, 'Refugees and Human Rights', 214.
100 'UNHCR 2000', above, note 11, paras. 42, 43; UNGA res.51/75, 12 Dec. 1996, para. 13:
9 IJRL 308, 310-11 (1997).
1 Reparations Case, above, note 17.
See, for instance, a message circulated via internet ListServ from Guy S. Goodwin-Gill (3 June 1997) headed 'United Nations Reform and the Future of Refugee Protection'; the proposed reforms did not materialize.
366 Gtoff Gilbert
however, that the mandate is not flexible; law, for the mandate should reflect the law relating to the international protection of refugees, is a tool for engineering desired results. The law simply provides parameters within which to act and legitimates authority for those actions. The mandate can and must adapt to circumstances, but the Statute and 1951 Convention cannot be ignored; expansion must not undermine the original mandate.104
It is also feared that international protection, with its basis in international law, will become peripheral to the work of UNHCR, even to the point that legal protection will give way to political expedience.105 However, UNHCR's role is changing and the original mandate needs refinement. A reconsideration, though, of UNHCR's rights and responsibilities to make diem fit for die times, always bearing in mind its Statute, the 1951 Convention and earlier Executive Committee Conclusions, would provide a legal underpinning for its activities and reassert its protective function.'06
3.2 Rights, Needs apd Legitimate Expectations
Given increased interventionism in humanitarian crises, what rights does UNHCR need? Merely drawing up some new charter of rights which might subsequendy be ignored by parties to a conflict would be a redundant exercise.107 However, if rights are down on paper and reflect what UNHCR truly needs to function in a humanitarian crisis, then it gives the international community a tool by which to apply pressure to
104 'UNHCR 2000', above, note 11, at paras. 17, 19-20: 'Refugee protection is the primary
concern of all UNHCR activities. Indeed, it is UNHCR's mandate to safeguard the human rights of individuals who lack national protection which gives the organization its distinctive character in relation to States, odier elements of the UN system and its operationa] partners . . . Unless the task of protection is seen in a broader context of efforts to resolve existing refugee situations and to avert new population displacements, there is a real risk that refugee protection standards will continue to decline. While many of UNHCR's efforts will be focussed on large scale population displacements, individual refugees and asylum seekers must benefit from the attention they deserve.' It might be argued that the expansion of UNHCR's activities has been ad hoc and reflected die personality and authority of the person, for example, die Secretary-General, delegating the task; dius, there has been no expansion of mandate. However, that still leaves die question of expanded activities under die dclegator's authority conflicting with the original mandate; see above, note 45 and accompanying text
105 Contrary to the Statute's requirement that the work of die High Commissioner be entinfy 'non-political'; cf. Anonymous, 'The UNHCR Note on International Protection You Won't See', paras. 22 and 23, forwarded e-mail (18 Nov. 1996) from Refugee Studies Programme, Oxford, now published in 9 IJRL 265, 272 (1997).
106 In diat vein, die 1997 Note on International Protection, 2 Jul. 1997, emphasizes international
protection and die grant of asylum. See also, EXCOM Conclusions 81 and 82 (XLV111) 1997.
107 See Yves Sandoz, ICRC, Address to Committee of Foreign Affairs and Security of die
European Parliament, Brussels, 25 Jan. 1994, T h e right to intervene on humanitarian grounds: limits and conditions. The right to intervene and international law in the humanitarian field. Towards a new concept of national sovereignty', sixdi conclusion. (Obtained from die ICRC website:
recalcitrant States. This section examines the needs of U N H C R if it is to carry out its extended activities, taking account of its current rights.
3.2.1 Intervention*08 to carry out the mandate
UNHCR's Model Agreement self-evidently presupposes that it will be acting with the consent of the host government The Agreement is drafted in terms intended to enable UNHCR to carry out its mandate:
Article HI.4 The Government shall at all times grant UNHCR personnel unimpeded access to refugees and other persons of concern to UNHCR . . . Article XVII. 2 This Agreement shall be interpreted in the light of its primary purpose, which is to enable UNHCR to cany out its international mandate for refugees fully and efficiently and to attain its humanitarian objectives in the country.
For example, the Quadripartite Agreement expressly provides that U N H C R is to have direct and unhindered access to all displaced persons and refugees from Abkhazia.110
However, is there a general right of access by U N H C R and, if so, for what purposes? Cornelio Sommaruga, President of the I C R C , has argued that there is a right to intervene to provide humanitarian assistance to a civilian population in time of international armed conflict1" and that this
should not be seen as an interference with the sovereignty of the State."2
Sandoz also has recognized a right of victims to receive assistance, but noted that it was not without limitations:"3
There are . . . limits to this right, relating to the nature of the agency offering to bring assistance and checks on the consignments. Indeed, the obligation to allow free passage to relief consignments being sent to the civilian population of
108 Sandoz, T h e right to intervene on humanitarian grounds', and Roberts, 'Humanitarian
Action', 5Iff. This section benefited gready from long talks with Francoise Hampson.
109 See also McCoubrey and White, Blue Hebruts, 69ff. 110 Above, note 97, Further Agreement, 4 Apr. 1994, para.(a).
C. Sommaruga, 'Assistance to Victims of War in International Humanitarian Law and Humanitarian Practice', 289 IRRC 373, 375-6 (1992), reiving in part on art 70, Additional Protocol I, 1977. For occupied territories within Geneva Convention IV, 1949, see arts. 23, 55 and, especially arts. 59 and 61. Sommaruga argues (376) that while consent of the Party is required, it cannot be withheld if the civilian population needs assistance and it will be provided impartially by a neutral body, such as the ICRC or UNHCR (Statute, para. 2, above, note 28). Indeed, one reading of art. 70 is that die Party to the conflict is obliged to organize relief and that only the Party concerned in the relief action can object, presumably because it would not be effective or safe on the conditions laid down by the party to die conflict. Art 18.2 Protocol II, 1977, requires die consent of die High Contracting Party (but not the rebel force) in a non-international armed conflict, but die same limits should apply; see D. Planner, 'Assistance to die civilian population: die development of die present state of international humanitarian law1, 288 IRRC 249 (1992).
112 See also Goodwin-Gill, The Rtfiigee in International Law, 267, note 108, citing Oppenhami International
Law. Cf. Art 20(b), UN Personnel Convention, below, note 142. Humanitarian intervention by
external armed forces is less man universally approved; see Sommaruga, 'Assistance to victims', 376-7; also, Landgren, 'Safety Zones', 443.
368 Geoff Gilbert
a party to a conflict, including the adverse party, may be made conditional upon checks to ensure that the contents are distributed exclusively to those for whom they are intended. Moreover, the parties to the conflict are bound to give a formal reply to any request to conduct an international relief operation, which must be humanitarian and impartial in nature, on their territory.
With regard to article 70 of Protocol I and article 18.2 of Protocol II,"4 the limitations are so great that it is difficult to discern any 'right': they both need the consent of the host State which can still subject any delivery to such scrutiny that any perishable goods would not survive the journey;"5 moreover, in practice, deliveries also need the consent of all the interested parties along the route."6 Sandoz argues that the limitations cannot be used to frustrate the supply of aid, for that would violate principles of the international law of armed conflict, such as not starving a civilian population to death."7 However, the international law of armed conflict does not ordinarily grant rights to individuals, but more usually, it imposes obligations on States. Human rights law, particularly the right to life set out in all human rights conventions, might found a claim to humanitarian relief for the purpose of ensuring survival, but even then that would not necessarily translate into granting UNHCR a right of access to refugees nor any other persons of concern to the High Commissioner.'18
A Chapter VTI resolution of the Security Council could require a State to grant access to a particular organization or organizations as part of maintaining or restoring international peace and security."9 As stated above, UNHCR has actively welcomed the Link in United Nations Security Council (UNSC) resolution 688 (1991) between gross human rights violations, forced displacement and the threat to international peace and
114 Above, note 111.
115 See generally, Hampson, 'States' Military Operations', 411—15, and Planner, 'Assistance to the civilian population', 254ff and 262. Even where relief can be supplied under art. 70, Protocol I, art 71 states that the Party in whose territory they shall carry out their duties must approve their participation and, while relief personnel are to be respected, protected and assisted, subject only to the constraints of imperative military necessity, diey are to 'take account of the security requirements of the Party in whose territory they are carrying out their duties'.
116 In theory, if criminal elements or those outside the control of the State authority blocked the
route, then their consent is not necessary, but in the latter case especially, they are a difacto authority who must permit the passage of relief. A favourite tactic of the Bosnian Serbs was to have the old women from a village sit in the road to block it; I am indebted to Karin Landgren for this information.
' " 'The right to intervene on humanitarian grounds', using art. 54, Protocol I.
1" N. Morris, 'Humanitarian Aid and Neutrality1, paras. 13 and 8 (paper presented to a symposium
organized by La Fondatvm pour la Etudes dt Difmst, 16-17 June 1995). Published in French as part of the collection of conference proceedings in Operations des Nahons Units — Ltpms dt Terrain. I am grateful to Nicholas Morris for a copy of the paper in English to which reference is made.
119 See UNSC res. 941 (1994), para. 5, above, note 49. See also, Roberts, 'Humanitarian Action',
19flT. Ch. VTI may be the only solution where a State deliberately blocks aid to part of its population in a non-international armed conflict; see the allegations of die International Federation of Human Rights Leagues with regard to Belgrade's actions in Kosovo: Guardian, 9 Sept. 1998, 11.
security.120 UNSC resolution 824 (1993), as well as unilaterally stipulating that Sarajevo, Tuzla, Zepa, Gorazde and Bihac were to be designated safe areas, required parties to the conflict to give humanitarian relief agencies unimpeded access to the safe areas.12' Furthermore, acting under Chapter VII, the Security Council could always impose relief on a recalcitrant or ineffectual State.122 Nevertheless, there is not enough supporting evidence to establish an independent right in UNHCR of access to refugees or others of concern in conflict situations.
Beyond conflict situations, it is implicit in the Statute that UNHCR will have access, but the Statute is only a General Assembly resolution. The question is, whether the implicit dimension has become a rule of customary international law. Recent evidence from Thailand123 and Kenya124 shows that UNHCR will only act in conformity with the State's domestic practice vis-a-vis refugees, which would suggest no 'right' in UNHCR, and that access remains a privilege granted by the State.125 That States generally give access is no proof that UNHCR has any right in the matter as against States.
In sum, international humanitarian law may provide a basis for developing a right of intervention to provide humanitarian relief, constrained only by the practical consequences of an armed conflict. Where there is no armed conflict, one further area for development for UNHCR would be a more generalized right of intervention to provide protection and relief to displaced persons. A right to intervene in situations other than those of armed conflict would need to be premised on an equivalent level of disruption to an armed conflict If there is a transborder element, then the host State will usually be willing to receive outside help with respect to relief, but may not welcome the protection that such organizations provide against forced repatriation.126 If the situation only involves internally displaced persons, then, as under article 18.2 of Protocol II,127 State consent will be necessary unless matters are so bad that UN
120 'UNHCR 2000', above, note 11, at para. 36.
121 See Mooney, 'Presence, ergo protection?', 416. Access was not forthcoming. Cf. the experience
of Open Relief Centres in Sri Lanka which were set up consensually: Landgrcn, 'Safety Zones', 452;
Guardian, 4 Sept. 1998, 15 (Serbian constraints on aid centres in Kosovo).
See the Memorandum of Understanding between Iraq and the Allies, above, note 15; indeed, it has been Turkey which has impeded access.
' See Human Rights Watch/Asia, 'Burma/Thailand; No Safety in Burma, No Sanctuary in Thailand', HRW Short Report, voL9:6, 18, Jul. 1997.
124 Guanfem, 31 Jul. 1997, 9.
123 UNGA res.51/75, 12 Dec. 1996, para. 6 (at 309), only 'emphasizes the importance of ensuring
access' by UNHCR, indicating that it is not an obligation of States.
126 Cf. the Tanzania Crisis of late 1996, where UNHCR did litde to prevent the mass expulsion
of Rwandese back to Rwanda, having already agreed the date of their return with the Tanzanian government; Amnesty International, 'Great Lakes', 2, 7-9. The issue is discussed in detail below.
370 Geoff Gilbert
authorized humanitarian intervention would be justified;128 it may be either that a State is engaging in gross human rights violations or that the economy has deteriorated so far or that there is some natural disaster and, as a consequence, that the population is suffering severely.129
At present, there is no right, as such, of access to provide protection, or to intervene to provide relief. At best, UNHCR may be able to claim under humanitarian law that it has a right to offer assistance, although it may not want to do so without some recognition of its right to offer protection. Where a State permits130 UNHCR to provide relief, then
UNHCR will be acting lawfully, but that is not the same as saying UNHCR has a right of access to provide protection.131
3.2.2 Protection in the Host State™2
Article VI. 5 of the Model Agreement obliges the government of the host State to 'take the necessary measures, when required, to ensure the security and protection of the premises of the UNHCR office and its personnel'.
The Quadripartite Agreement provides for a joint guarantee of United Nations' and the co-operating agencies' staff and property by the Russian Federation, the Georgian side and the Abkhaz side.133 Thus, UNHCR will seek die protection of not just the host State, but also groups in control of territory where it will be operating and any independent security force. Sometimes, however, it should be able to call on the international community where host-State protection is not forthcoming
128 See N.S. Rodley, 'Collective Intervention to Protect Human Rights', in Rodley, N., ed, To
Loose the Bands of Wickedness (1992). See also, R.B. LiHich, Humanitarian Intervention and the Umttd Nations, 1973; JJM. Moore, Law and Civil War in the Modtm World, 1974; T. Franck & N.S. Rodley, 'After Bangladesh: The Law of Humanitarian Intervention by Military Force', 67 AJIL 275 (1973); F.R. T e s o n , Humanitarian Intervention (1988).
129 See UNSC res.688 (1991), above, note 15, which linked intervention by relief organizations
with repression of part of a population by the State and a threat to international peace and security. See also, Landgren, 'Safety Zones', 454—5.
130 Sometimes the permission will be implied, such as where a State has collapsed and there is
no central authority to give permission; see quotation in text at note 34 above. In those circumstances, the humanitarian crisis will involve internally displaced persons, not refugees, and no one would claim UNHCR has a 'right' of access to them. Moreover, States do not collapse without warnings so it is likely that UNHCR will already be operating in such a State widi the permission of the previous administration; whether those who gain de facto control of an area of a collapsed State will honour such permission is doubtful (I am grateful to Nicholas Morris for sharing his views on this matter).
" ' It is arguable that a Contracting State would be under a duty to co-operate with UNHCR in its protection function under art 35 CSR51. On die other hand, the State's obligations under art. 6 ICCPR66 (right to life) and art 11 ICESCR66 (to take appropriate steps to ensure the realization of everyone's right to an adequate standard of living, including adequate food), do not add to the argument that UNHCR should have a right of access for the purpose of protection, particularly since derogations from art. 11 would be permissible during die crisis.
152 See also Convention on die Prevention and Punishment of Crimes Against Internationally
Protected Persons including Diplomatic Agents, New York, 1974, 13 ILM 42 (1974).
